Judge Gottschall ruled upon the parties’ motions in limine in this Lanham Act case regarding the alleged sale of counterfeit Newport cigarettes. Of particular interest, the Court denied in part plaintiff’s motion to exclude evidence of the religious belief of any party or witness. In order to ensure that “no anti-Muslim prejudice infect[ed] the jury’s deliberation," the Court allowed one defendant to state once that he was a Christian. The Court also noted that it would reconsider its order if plaintiff suggested a reasonable way for the Court to resolve the issue in voir dire.

The Court also agreed to read the jury a statement regarding the fact that the health of one defendant prevented his attendance at trial and that the jury should not hold his absence against him or consider it in their deliberations.

Click here for the Seventh Circuit’s new proposed pattern trademark jury instructions.* The committee that prepared the instructions included Northern District of Illinois Judges Kendall and Kennelly, as well as a broad spectrum of attorneys from academic, government and private practice.

The pattern instructions are impressive for their thoroughness. They are also very well cited, making them an excellent primer on Seventh Circuit trademark law. Of particular note, the instructions do not include a dilution instruction because since Congress’s 2006 revision of the dilution laws, there has not been sufficient appellate interpretation.

At the request of Federal Circuit Chief Judge Michel, an all-star panel was established to create a comprehensive set of model patent jury instructions — click here to download them. The panel included patent litigation heavy weights like Don Dunner and federal judges — Judges Ward (E.D. Texas) and Whyte (N.D. Cal.). The Federal Circuit has not officially endorsed the jury instructions, but they are very comprehensive and deal with just about every recent case law development. In particular, they provide an excellent glossary of patent terms for the jury (something that should be in every set of patent jury instructions, but often is not) and they provide two KSR obviousness instructions, one for if the jury is making the final determination and one if the judge does (the panel could not come to a consensus on what the correct reading of the law was).

The one instruction I had hoped to see that was missing was an instruction for awarding royalties on post-verdict sales — see the MTTLR Blog on the issue here or read commentary on Judge Clark’s plan to submit post-verdict damages to the jury here at Michael Smith’s E.D. Texas blog. If anyone has seen an instruction for post-verdict damages, send it to me and I will post it for all to consider.

You can also read more about patent jury instructions in the Blog’s archives — click here for the Seventh Circuit’s model patent jury instructions and here for a list of jury instructions Northern District judges have offered as precedent in IP cases.

Hat tip to Dennis Crouch for linking to the new model jury instructions here at Patently-O.

I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the Commission’s findings, I am now looking at findings for the specific Principles studied — click here for the last post discussing the use of juror questions.

Courts were also encouraged to repeat instructions throughout trials as necessary. When I clerked for District Judge Gordon Quest (W.D. Mich.), I saw numerous trials, in a very short period, all of which used preliminary instructions. It is hard to believe a trial without preliminary instructions could be as effective as one with them. Most jurors come to a trial without significant trial experience beyond Law & Order or CSI – both great series, but lousy juror education. Going through a trial without instructions until the end is like asking people to play football, without telling the rules of the game until the fourth quarter. The results of the study confirm my belief. Thirty four trials used preliminary instructions. Judges from 87% of the trials reported that the preliminary instructions approved juror understanding. 80% of the judges said the instructions increased the judge’s satisfaction with the trials. And judges believed that the instructions increased fairness in 76% of the trials. No judge believed that the instructions harmed the trial process. Chief Judge Holderman believed the preliminary instruction were valuable:

I have found that preliminary instructions helped to orient the jurors to the case and allowed the jurors to start making connections between the evidence and the disputed issues in the case more quickly.

The Northern District has posted the Seventh Circuit’s new proposed pattern jury instructions for patent cases on its website — click here for a copy. The instructions include all of the recent revisions to the patent laws, including KSR and Seagate. The Seventh Circuit requested comments on the instructions be sent to:

Comments will be accepted until April 1st. Also, below is my list of IP jury instructions by Northern District judge, I am sure we will start to see some new ones soon in light of the turbulent 18 months patent law has had:

As promised last week, the jury instructions are now available — click here for a copy. Additionally, although the verdict form is not available electronically, the Court’s minute order (click here for a copy) gave some additional detail. The jury found for plaintiff RRK on each of eleven counts and awarded damages as follows:

R. David Donoghue is a patent trial attorney and partner with Holland & Knight’s Intellectual Property Group in Chicago. A trusted counselor to his retail and supply chain clients, Dave routinely speaks to groups of all sizes on an array of intellectual property topics. Chicago IP Litigation was created to help businesses understand their intellectual property rights and how to drive their cases to positive resolution.

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